Unable to Introduce Evidence

Title IX was an amendment established by the U.S. Department of Education in 1972 that sought to address problems associated with sexually-based discrimination in educational institutions. Schools are required to implement a means for an accuser (complainant) to file or submit a report alleging that an individual (respondent) has violated Title IX provisions. Each school is responsible for acknowledging these complaints in a manner that is fair and equitable; however, schools were traditionally given some flexibility in the procedure as it relates to affording parties their due process rights. One critical aspect of these matters involves how evidence is presented, disputed, evaluated, etc.

The Basis for a Complaint

Before considering how evidence is handled to support or defend against a complaint it is important to understand what constitutes a violation of Title IX. The Office of Civil Rights (OCR) is the federal entity that provides ongoing guidance, support, and enforcement of compliance among academic institutions, which is a requirement to remain eligible for federal educational funding. The acts that violate Title IX have continued to be defined and now include sexual harassment, sexual violence, stalking, or other conduct that creates a hostile educational environment or impedes someone's access to benefits or participation in activities based on their sex, gender identity, or sexual orientation.

The Elements of Equitable Title IX Complaint Resolution

Each school must designate a Title IX Coordinator that is responsible for implementing and maintaining its processes and procedures for handling complaints. Schools must respond in a “prompt and equitable” manner, which begins with explaining how to file a complaint and maintaining reasonable access to the written provisions for all students, faculty, staff, and other members of those affiliated with the institution.

Federal guidance states that colleges must proceed through the Title IX process in a “reasonably prompt” manner and formally notifies all the parties involved. The Title IX Coordinator must stop the misconduct, sufficiently remediate the effects, and avert any potential recurrence. The institution must initiate an investigation that is conducted fairly and without conflicts of interest as they gather evidence necessary to assess the allegations.

Gathering of Evidence and Sequence

Recent regulatory guidelines have clarified that a three-party model must be employed. This requires a separate official responsible for receiving a complaint, another that investigates and gathers evidence, and another responsible for making decisions and potentially imposing penalties. Although the Title IX disciplinary process is not designed to mimic formal judicial court procedures, the federal guidelines have continued to evolve to ensure proper procedural due process. This development was largely in response to incidents where academic institutions have proceeded without affording parties any fundamental process rights, which was illustrated in Goss v. Lopez.

Lack of Evidence and Disclosure

In Goss v. Lopez, the focus was that academic institutions and other government-supported entities must recognize due process rights when taking action that may deprive someone of their basic constitutional protections. The case was a class-action suit brought by a group of students who were suspended from their school without being afforded any formal opportunity to answer the allegations, such as in a hearing.

The court ruled that when a school seeks to impose suspensions, the student must be provided with some basic notice and an opportunity to be heard. This has been viewed as an initial landmark ruling that sought to protect student rights in disciplinary matters.

Challenges to the Introduction of Evidence

In proceedings that involve allegations of violating Title IX guidelines, there have been concerns and contention related to fully presenting (disclosing) evidence among advocates for victims. In some serious cases such as those involving an alleged sexual assault, the victim has often experienced significant trauma and endured substantial emotional and psychological problems. Many people have expressed concerns regarding complainants having to “relive” their memories of a traumatic event during the presentation of evidence in hearings. Further, many survivors or victim advocates have specifically objected to subjecting these individuals to cross-examination based on its adversarial nature.

Victim Testimony Evidence and Rights of the Accused

Some who oppose having alleged victims provide testimony and being subjected to cross-examination have concerns that victims will be discouraged from reporting incidents such as sexual assault. The OCR acknowledged the basis for such concerns; however, they also recognize the rights of the accused. The argument creates a problem between attempting to protect survivors but potentially violating the respondent's right to due process.

New Regulations Regarding Evidence

The OCR recently compiled and analyzed extensive feedback in developing new regulations. Some of these that specifically relate to evidence include:

  • The school's designated administrators must provide all parties with “evidence related to allegations” 10 days before a response is needed
  • Parties are permitted to discuss the allegations during the process, which eliminates “gag orders”
  • Colleges and universities are required to allow for live hearings with parties being accompanied by advisers
  • Cross-examination of parties is permitted by advisers and is required when entering testimony into evidence

Importance of Retaining Experienced Advisory Counsel

Individuals in post-secondary educational communities that are the subject of allegations for violating Title IX guidelines are strongly encouraged to confer with a knowledgeable attorney that is familiar with this area of practice. Contact with an attorney should be made swiftly, as federal guidelines encourage colleges and universities to promptly respond and investigate complaints. This will help to maximize the time available for thorough preparation, such as being ready to deliver concise statements and to confidently respond to questioning.

The Title IX guidelines have been evolving rapidly with modifications to regulations; therefore, having an attorney that is abreast of these changes is critical in these volatile times. Your attorney may also potentially engage in discussions with the administrators toward negotiating a mutually acceptable resolution to the matter.

Attorney Represents Respondents in Title IX Actions

Students found to have committed acts of sexual harassment, dating violence, or other forms of misconduct that violate Title IX may be suspended or dismissed from the school. Attorney Joseph D. Lento has been effectively providing advisory representation in these matters for many years. Contact the office today at (888) 535-3686.